Original Application No. 16 of 2009. Case: Thomas Zachariah, Munjattu Karingattil, Perissery P.O., Chengannur, working in Bharat Sanchar Nigam Limited, Telephone Exchange, Chengannur Vs 1. Bharat Sanchar Nigam Limited, Represented by and Through its Chairman and Managing Director, Corporate Office, New Delhi, 2. Chief General Manager (BSNL), Kerala Telecom Circle, Bharat Sanchar Nigam Limited, Thiruvananthapuram, 3. Union of India, (By and through), the Chairman, Telecom Commission, Department of Telecommunications, New Delhi. Central Administrative Tribunal
| Case Number | Original Application No. 16 of 2009 |
| Counsel | T. C. Govindaswamy, Pratap, T. C. Krishna |
| Judges | George Paracken (Judicial Member) & K. George Joseph (Administrative Member) |
| Issue | Constitution of India, 1950 - Articles 14, 16 |
| Judgement Date | February 23, 2010 |
| Court | Central Administrative Tribunal |
Judgment:
George Paracken (Judicial Member)
1. The applicant is aggrieved by the Annexure A-5 provisional seniority list No. 6 of TES Group-B officers issued vide Bharat Sanchar Nigam Limited (in short BSNL) letter dated 28.7.2004 and Annexure A-6 provisional seniority list No. 7 in respect of regular SDEs in BSNL issued vide letter dated 2.12.2004.
2. The BSNL has invited objections if any to the aforesaid provisional seniority lists daetd 28.7.2004 and 2.12.2004. The applicant herein has belatedly filed Annexure A-11 representation dated 3.3.2008 against those lists. In the said representation he has stated that while he was promoted as TES Group-B officer vide Department of Telecommunication (in short DOT) letter dated 7.12.2001 with his staff No. 107836, his juniors promoted under the competitive quota vide DOT order No. 2-48/2000-STG-II dated 27.4.2004 have been shown above him. He has also pointed out that the respondents have committed a mistake as around 6000 candidates including himself promoted under promotee quota vide DOT order dated 7.12.2001 have been treated as juniors to those who were promoted through competitive quota in the year 2004. He has, therefore, requested the respondents that the candidates who have been promoted under the competitive quota vide order dated 27.4.2004 should be placed en bloc below who have been promoted vide order dated 7.12.2001 in accordance with paragraph 2.1 of DOP&T OM dated 3.7.1986 (Annexure A-8) and 7.2.1986 (Annexure A-7) on the subject of seniority. In this OA the applicant has prayed for quashing and setting aside the aforesaid provisional seniority lists. He has further sought a direction to the 3rd respondent to recast the aforesaid provisional seniority lists in accordance with the instructions contained in DOP&T OM dated 7.2.1986 and 3.7.1986 read with clarification dated 3.3.2008 and thereby place all the SDEs en bloc below all the SDEs promoted in the year 2001 (under 75% quota). He has also sought a direction to the respondents to complete the final seniority list after the necessary rectification and after giving opportunity of hearing to the applicant and other similarly placed persons.
3. Learned counsel for the applicant Shri T.C. Govindaswamy has also submitted that the question involved in this case is no more res-integra as the same has been decided by the Chandigarh Bench of this Tribunal in TAs 84&85/HR/2009 - Dewan Chand & Ors. Vs. Union of India & Ors. decided on 25.8.2009. The specific question raised in those applications were as to what would be the mode of fixation of seniority in TES Group 'B' between members of Service who are appointed on the basis of seniority vis-a-vis those who entered the Service after qualifying the Limited Departmental Competitive Examination (for short LDCE), if the rules are silent on this aspect? After detailed discussion of the aforesaid issue the Tribunal held as under:-
22. Thus, the seniority of the incumbents have to be determined on the dates of their actual joining and not on notional basis by allotment of slots. If the recruitment is conducted in a single process and promotions are ordered on the same date or occasion, one can understand case of the respondents. But in this case where the LDCE could not take place, for whatsoever reasons, for a number of years and once it has taken place subsequently, the pass out candidates cannot be given seniority on national basis of year of vacancy, which concept is applicable on in the case of All India Service officers. In any case one thing is more than clear that this a case where the rota rule has been broken down due to delay in making recruitment from both the sources and as such it has to be taken that one would get his seniority only from the date he becomes member of the Service. The official respondents have admitted that competitive examination could not be held because the process of absorption of Group B officers including SDE (T) in BSNL was finalized in the year 2004-05 and syllabus for the examination had to be revised / finalized. The vacancies of SDE (T) had to be recalculated retrospectively, as a result of cancellation / abolition of 1966 posts of TES Group B retrospectively and transfer of posts to MTNL. The quota for each category i.e. 75% and 25% i being maintained from 2001-02 onwards.
23. The Respondents have relied upon instructions issued by the Government of India, Department of Personnel and Training issued vide OM dated 3.7.1986. Para 3.2. of which clearly provides that where absorbees are affected against specific quota prescribed in the recruitment rules, the relative seniority of such absorbee's vis-a-vis direct recruits or promotees shall be determined according to the rotation of vacancies which shall be based on the quota reserved for promotion, direct recruitment and promotion respectively in the recruitment rules. In this case, a person who has become member of Service in 2004 is sought to be placed below persons who qualified an examination on the basis of a syllabus prescribed in 2006, against the vacancy of 1996 or so. This kind of approach is totally unreasonable, unwarranted and illegal. In any case, official respondents would have done well to issue their own instructions for fixation of seniority of incumbents when there is clash of interest amongst thousands of officers and there is huge delay in making selection.
17. In view of the above discussion, both these Original Applications are allowed. Orders/seniority lists impugned in these petitions are quashed and set aside. The respondents are directed to re- draw the seniority of officers of TES Group-B on the basis of dates of joining of incumbents, as discussed above, within a period of six months from the date of receipt of copy of this order. Before undertaking such exercise, respondents may invite objections from the persons likely to be adversely effected before re-drawing seniority as observed herein above. No costs.
4. Shri Govindaswamy has also relied upon the order of this Tribunal in OA 86 of 2009 - V. Govindan & Ors. Vs. Union of India & Ors. decided on 5.2.2010. The applicants in the said OA were Divisional Engineer/Assistant General Managers in the BSNL initially recruited as Junior Engineers prior to 1982 and their earlier promotions as Sub Divisional Engineer on their qualifying (prior to 1990) the departmental examination were all against pre 1994-95 vacancies. Their contention was also that on assigning higher seniority to the later qualified individuals is against the existing instructions and the rules do not provide for such intermingling of officers belong to different recruitment years and to steal a march over the already promoted officers in seniority. After hearing the parties in detail the Tribunal has allowed the OA and set aside the impugned seniority lists. The operative part of the said judgment is worthwhile to be reproduced here as under:-
"12. Arguments were heard and documents perused.
13. First as to the technical objection. The applicants have challenged the proposed seniority list and at least two individuals have been impleaded. The objection by the official as well as party respondents is that the OA is bad due to non-joinder of parties. The applicants have no claim against any particular individual. The challenge is only as to the method adopted by the respondents in fixation of seniority. As such, the question is whether...
To continue reading
Request your trial